Family, Divorce, Separation, Partnership

Divorce and Separation advice

Has your relationship broken down? Are you contemplating divorce or separation? Do you need expert advice as to your rights and entitlements or those of your children? Are you worried about a vulnerable person? Thomas Barry & Company, Family Law Solicitors, Dublin, has the expertise, knowledge and experience you need.

If you would like advice or assistance in relation to a family law matter please ring +35316773434 or submit the quick Family Law enquiry box on the left.

We appreciate relationship breakdown and dealing with family law solicitors can be traumatic. We believe the parties should be encouraged and assisted to achieve a constructive settlement as quickly as reasonably possible. Where this is not feasible and proceedings are necessary, we press forward robustly and expeditiously.  Taking early advice can be critical.

Based on over 25 years experience we will advise you as to what we think you should seek and what we think you can expect. .

 

Separation

When a marriage, civil partnership or other relationship breaks up the consequences are traumatic and life changing. To properly protect your interests and those of children it is generally necessary to enter into a formal legal separation. Thomas Barry & Company, Family Law Solicitors, Dublin, will guide you. If divorce, annulment or dissolution of a civil partnership are alternatives to separation we will discuss these with you.  The practical issues that can arise include:

  • Living arrangements and accommodation needs
  • Custody, guardianship and access to children
  • Maintenance, earning capacity and financial resources
  • Property and asset division
  • Length of relationship
  • Contributions to the relationship (financial and non-financial)
  • Age and health
  • Income and other taxes
  • Pension rights
  • Succession rights

A separation arrangment is very often the basis on which a later divorce or dissolution order is made.  Enforceable separation agreements usually require that both parties be independently advised and make full disclosure of their financial positions.  Sometimes this may involve action to ensure that a party does not hide or dissipate resources.

Legal separation can be by way of a Separation Agreement or Judicial Separation. 

Separation Agreement

In the vast majority of cases a Separation Agreement is reached.  This formalises the parties’ rights and duties to each other and to children. A Separation Agreement can be arrived at by negotiation, mediation or other collaborative mechanism. 

Judicial Separation

Depending on the circumstances it may be necessary to have a Separation Agreement approved by court. Where the parties are agreed this rarely causes a problem. A court approved a Separation Agreement becomes a Judicial Separation. Where the parties cannot agree and a matter goes to court the court’s order will be a Judicial Separation.  To obtain a Judicial Separation one of the following criteria must be met:

  • One party has committed adultery
  • One party has behaved in such a way that it would be unreasonable to expect the other to continue to live with them
  • One party has deserted the other for at least one year at the time of the application
  • The parties have live apart from one another for one year up to the time of the application and both parties agree to the decree being granted
  • The parties have lived apart from one another for at least three years at the time of the application for the decree (whether or not both parties agree to the decree being granted)
  • The court considers that a normal marital relationship has not existed between the spouses for at least one year before the date of the application for the decree. (This is the most common ground on which Judicial Separations are given, as neither party needs to be shown to be at fault). 

Only a small minority of separation cases go to contested final court hearing.

 

Divorce

Divorce formally brings a marriage to an end and leaves the parties free to remarry or enter into a civil partnership. The consequences are life changing.  Thomas Barry & Company, Family Law Solicitors, Dublin, will help you to properly protect your interests and those of children.

To obtain a divorce in Ireland certain conditions must be fulfilled:

  • The parties must have been living apart for four of the five years before application is made.
  • There must be no reasonable prospect of reconciliation.
  • Arrangements for maintenance and the welfare of spouse/dependent children must be made.

“Living apart” is widely defined. Parties can be “living apart” while under the same roof.  Practical issues that can arise include:

  • Living arrangements and accommodation needs
  • Custody, guardianship and access to children
  • Maintenance, earning capacity and financial resources
  • Property and asset division
  • Length of relationship
  • Contributions to the relationship (financial and non-financial)
  • Age and health
  • Income and other taxes
  • Pension rights
  • Succession rights

In most cases the parties will reach agreement by negotiation, mediation or other collaborative means.  As only the court has power to grant a divorce even where agreement is reached it will still have to be approved by court.  The court will be particularly mindful to protect the interests of children and vulnerable persons.

Where agreement is not possible the court will decide the issues.  In either event the court will expect each party to make full disclosure of their financial positions.  Sometimes this may necessitate steps to ensure that a party does not hide or dissipate resources.

 

Nullity

Nullity (also known as annulment) is the cancellation of a marriage or civil partnership and can only be ordered by Court. If a marriage or civil partnership is annulled and declared void or voidable ab initio (from the beginning) the effect is that it never existed in the eyes of the law. This has profound consequences for rights between the parties. As they are considered never to have been legally married or in a civil partnership neither will have spousal property, succession or financial rights against the other. State and church annulments are separate and distinct. Church annulments do not have legal effect.

Nullity is a very intricate area of law.  Thomas Barry & Company, Family Law Solicitors, Dublin, can provide the expertise you need.

The law distinguishes between void and voidable marriages and civil partnerships.  A void marriage or civil partnership is regarded as never having taken place. A voidable marriage or civil partnership is considered to be valid until a decree of nullity is made.

Grounds for Nullity – Void Marriage or Civil Partnership

A marriage or civil partnership can be declared void due to:

  • non-observance of formalities,
  • lack of capacity,
  • lack of consent.

There are several bases for lack of consent including fraud, mistake and misrepresentation.

Grounds for Nullity – Voidable Marriage or Civil Partnership

A marriage or civil partnership can be declared voidable due to:

  • impotence,
  • inability to enter into and sustain a normal marital or partnership relationship.

Inability to enter into and sustain a normal marital or partnership relationship might arise, not just from a recognised or defined psychiatric or mental illness, but from some other inherent quality or characteristic of an individual's nature or personality.

Grounds for Refusing Nullity

There is a legal presumption of validity towards marriages and civil partnerships generally. Grounds upon which nullity can be refused include:

  • approbation (e.g. where a party accepts the marriage or civil partnership as valid even though he/she knew it could be set aside)
  • delay,
  • ratification of void marriage or civil partnership,
  • collusion.

Collusion

Annulments cannot be obtained by collusion. Where a Court is satisfied that the parties have entered into an agreement to present the case so that the true situation is not disclosed it may refuse to grant a Decree. That is not to rule out some co-operation but it must fall short of collusion.

 

Civil Partners, Cohabitees & non Marital Relationships

Civil Partners

The Civil Partnership Act, in force since 1st January 2011, radically changed the ground rules by providing legal recognition and protection for civil partners, whether of the same or opposite sex. As a result marriage-like benefits are now available to gay, lesbian and opposite sex couples who have registered their civil partnerships. Unfortunately some of these relationships fail. If you are in that position Thomas Barry & Company can provide the legal advice you need.

The rules for separation and nullity in civil partnerships are broadly similar to those for marriage.  The rules governing the dissolution of civil partnerships are different. A decree of dissolution allows both parties to a civil partnership to marry or enter into a new civil partnership. A court order is required to dissolve a civil partnership. Before one can be granted:

  • The parties must have been living apart from one another for a period amounting to 2 out of the previous 3 years before the application is made.
  • Proper arrangements must be made for the civil partners.

“Living apart” is widely defined. Parties can be “living apart” while under the same roof. Practical issues that can arise include:

  • Living arrangements and accommodation needs
  • Custody, guardianship and access to children
  • Maintenance, earning capacity and financial resources
  • Property and asset division
  • Length of relationship
  • Contributions to the relationship (financial and non-financial)
  • Age and health
  • Income and other taxes
  • Pension rights
  • Succession rights

In most cases the parties will reach agreement by negotiation, mediation or other collaborative means.  As only the court has power to grant a dissolution of civil partnership even where agreement is reached it will still have to be approved by court.  The court will be particularly mindful to protect the interests of children and vulnerable persons.

Where agreement is not possible the court will decide the issues.  In either event the court will expect each party to make full disclosure of their financial positions.  Sometimes this may necessitate steps to ensure that a party does not hide or dissipate resources.

Cohabitees

The Civil Partnership Act deals with other non marital relationships. It defines cohabitants as two same-sex or opposite-sex adults who are:

  • not married to each other
  • not in a registered civil partnership
  • not related within the prohibited degrees of relationship (relationships which would make them ineligible to marry each other) and
  • living together in an intimate and committed relationship

The Act provides rights and protections for cohabiting couples. These rights do not go as far as rights for civil partners. Thomas Barry & Company, Family Law Solicitors, Dublin, can help you.

One of the main rights is a redress scheme for financially dependent long-term cohabitants on the ending of a relationship.To be avail of the redress scheme the relationship must be of at least 5 years duration. Termination can be by break-up or death. The scheme allows a financially dependent cohabitant to apply to court for certain remedies, including maintenance, pension or property adjustment orders, or provision from the estate of a deceased cohabitant.The Act also allows for the recognition of cohabitant agreements which regulate the shared financial affairs of cohabiting couples and enables couples to opt out of the application to them of the redress scheme.

 

Property Settlement

Property settlement is an intrinsic part of family and relationship law work. Protecting a client’s position requires a good knowledge of property law and sound judgement. Thomas Barry & Company provides this.

Among the points that frequently arise are:

Family Home

The family home is often the most cherished asset. For this reason the law prevents a spouse or civil partner from selling, mortgaging, leasing or transferring the family home without the consent of the other.

The Succession Act gives a spouse, civil partner and, to a lesser extent, a cohabitee certain legal rights in the event of the death of the family home owner. See FAQ's Probate & Administration

Solely Owned and Joint Property

Many factors go into determining what is considered marital or partnership property and how it is divided in the event of separation, divorce or dissolution. Simply because property is solely owned by one party does not take it outside the net.

Transfer & Sale

A separation, divorce or dissolution may require the transfer or sale of property. Frequently this can be to provide the funds for the purchase of an alternative home. Transferring, purchasing and selling residential or commercial property is one of our strengths. See Conveyancing & Property.

Mortgages

If a property is subject to a mortgage it will remain so after separation, divorce or dissolution. The lender’s rights remain unaffected no matter what the parties agree between themselves. A party can only be released from the mortgage by payment or with the lender’s consent.


Custody & Guardianship

The Interests of The Child First

The law treats the interests of children as paramount.

Where there are children any relationship termination arrangement will have to provide for them. All parties are expected to display high degrees of sensitivity and forbearance when it comes to decisions affecting a child’s care and upbringing. While preferably avoided sometimes this can become contentious.

What is Custody?

Custody is the day to day care and control of dependent children.

How does Custody Differ From Guardianship?

The guardian or guardians of a child make all the major decisions in the child’s life e.g. where the child lives, schooling, religion, medical procedures, passport applications. Generally married parents are joint guardians and remain so after marriage even if the child spends most of his or her time with the other parent.

The position of unmarried parents is different. A mother is always a guardian. A father, not married to the child’s mother, can become a guardian. If this is by agreement with the mother there is a relatively straight forward procedure for applying to the District Court. If agreement is not forthcoming the situation is more complex.

 

Pension Rights in Relationship Breakdown

One of the most valuable assets separating or divorcing spouses/civil partners/cohabitants have is often a pension. Irrespective of in whose name a pension is, it can be treated as an asset of the couple.

This is an intricate area. Generally pension rights are valued as those rights that have accrued up until termination of the relationship. Each party is obliged to disclose full details of any pension which he or she may have. The are several options for dealing with pensions including:

  • Payment of the pension (when it falls due) can be split so that a portion is paid to each party.
  • Part of the pension fund can be hived off and placed into another pension fund in the name of the other spouse/civil partner.
  • Arrangements can be made as to how contingent benefits are treated. A contingent benefit is often referred to as a "death in service benefit" and usually paid to a widow, widower, surviving civil partner or dependent child if a pension scheme member dies while in employment.

Thomas Barry & Company has considerable experience in the area. If you would like to discuss any aspect of pension rights or a related issue please fill in the Family Law enquiry box. Alternatively you can ring  +353 1 677 3434.

 
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 email: info@thomasbarry.ie


11 St. Stephen's Green,
Dublin 2.
Tel: + 353 1 677 3434
Fax: + 353 1 677 3445

 

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